Campbell v. Thunder Bay (City), 2014 HRTO 1759

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Daniel Campbell

Applicant

-and-

Corporation of the City of Thunder Bay and Manulife Financial

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: December 5, 2014

Citation: 2014 HRTO 1759

Indexed as: Campbell v. Thunder Bay (City)

WRITTEN sUBMISSIONS

Daniel Campbell, Applicant

Self-represented

Corporation of the City of Thunder Bay, Respondent

Mandy Fricot, Counsel

1The applicant filed this Application alleging discrimination in employment on the basis of disability and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2This Interim Decision addresses the request by the City of Thunder Bay (“City”) for access to certain personal health information of the applicant maintained by its Compensation and Benefits Section. The Interim Decision also addresses the City’s request for an extension of time to file its Response and its request for particulars of the applicant’s systemic discrimination claim.

Request for access to, use and disclosure, of applicant’s health information

3The City has yet to file a Response, stating that before it can do so, it must have access to personal health information contained in the applicant’s file maintained by its Compensation and Benefits Section. The applicant’s file is deemed to be personal health information. Pursuant to the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sch. A, access to the medical file may not be permissible unless the applicant gives her consent or a court or Tribunal orders it.

4The City has filed a Request for an Order during Proceedings (“Request”) seeking an order from the Tribunal granting it access to, and the authority to use and disclose, the applicant’s health information for the period from March 20, 2012 onwards contained in the files maintained by the City’s Compensation and Benefits Section.

5The City sets out the following process and conditions that it will undertake to put in place to minimize any privacy concerns that might arise from its access to, use and disclosure of, the documents.

1. Upon receipt of the files from the City’s Compensation and Benefits Section, the City will promptly provide the applicant with a copy of all of the documents received with privileged documents, or portions thereof, if any, redacted.

2. If any documents or portions thereof are redacted, the City will:

a. Specify which document is redacted due to privilege;

b. Identify the general nature of the document; and

c. Identify the category of privilege that is claimed.

3. The City will confirm with the Tribunal after it has delivered a copy of the documentation to the applicant.

4. The City Employee Health Disability Nurse and its Rehabilitation Consultant will be authorized to disclose to, and discuss with, the City and its counsel, all information and documentation concerning the applicant and his health information relating to the period between March 20, 2012 and onwards with respect to the facts and allegations raised in this Application and the City will be authorized to use and disclose the applicant’s health information for the purpose of responding to and defending the Application.

5. The City and its counsel, advisors, individuals giving instructions to counsel and potential witnesses (in relation to health information disclosed) are permitted to access, review and use the applicant’s health information obtained from the Compensation and Benefits Section.

6. Counsel for the City will confirm with all individuals with whom the applicant’s health information is disclosed or discussed that the individuals are required to strictly maintain the confidentiality of the information.

6The applicant opposed the Request on the basis of privacy concerns.

7Rule 16 of the Tribunal’s Rules of Procedure contemplates that parties to an Application will not be required to exchange arguably relevant documents until 21 days after the Notice of Hearing is sent out by the Tribunal, which in the normal course is after the Application, Response and any Reply have been filed.

8Absent exceptional circumstances, the Tribunal will not permit a request for particulars or production of documents to delay the filing of a complete response: Glynn v. Lowe’s Companies Canada, 2009 HRTO 1180 at para 8. However, the Tribunal has also recognized in similar situations that it is sometimes appropriate to order access to an internal medical file at an early stage in order to ensure that a respondent is in a position to meaningfully respond to an application: Bryer v. (City) Toronto, 2010 HRTO 2389; Johnston v. Toronto Transit Commission, 2011 HRTO 923, and Power v. Toronto Transit Commission, 2011 HRTO 1462.

9As with the employers in the cases cited above, the respondent has established a special unit to interact with its employees in respect of disability issues in order to ensure that employees’ medical information will be kept confidential. The fact that the respondent has established a system which protects its employees’ privacy does not change the fact that the files at issue are the respondent’s own records regarding the applicant and its interactions with him.

10In my view, as in the cases cited above, the City will not be in a position to meaningfully respond to all of the allegations in the Application without access to the applicant’s health information to explain how it treated the applicant and why it acted as it did. It is therefore appropriate to issue an order granting the City access to, and the authority to use and disclose, the applicant’s health information for the period from March 20, 2012 onwards contained in the files maintained by the City’s Compensation and Benefits Section before requiring the City to file its Response. This Order is made subject to conditions set out in para. 5 above.

11I note that in his Response to the respondent’s Request, the applicant appears to request the disclosure of certain materials from the City. Rules 16 and 17 of the Tribunal’s Rules of Procedure (“Rules”) set out a series of rules and time frames for the disclosure of documents. Any request for disclosure of documents must only be made after the parties have made their disclosure of arguably relevant documents in accordance with Rule 16 of the Tribunal’s Rules.

Extension of Time

12The City requested that it be granted an extension of time for the filing of their Response until 35 days from the date on which the Tribunal issues its decision in respect of its Request. In the ordinary course, respondents have 35 days from the date of receipt of the Application to submit their Responses. In the circumstances, the respondent’s extension request is appropriate.

Request for Particulars

13The City requested particulars regarding the applicant’s claim of systemic discrimination. I note that the applicant responded to this issue in his Response to the City’s Request. I do not think that further particulars are required for the City to meaningfully respond to the Application.

ORDER

14The Tribunal makes the following order:

a. The City is granted access to, and the authority to use and disclose, the applicant’s health information for the period from March 20, 2012 onwards contained in the files maintained by the City’s Compensation and Benefits Section before requiring the City to file its Response. This Order is made subject to conditions set out in para. 5 above.

b. The City must file its Response within 35 days from the date of this Interim Decision.

15I am not seized of this matter.